BAKER v. OAKWOOD HOSPITAL CORP., et. al.

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BAKER

v.

OAKWOOD HOSPITAL CORP., et. al.

January 18, 2000

No. 206407

Wayne Circuit Court

LC No. 96-647788 CL

VERONICA L. BAKER,

Plaintiff-Appellee,

v

OAKWOOD HOSPITAL CORP and STEPHEN M. ARONSON,

Defendants-Appellants.

Before: Sawyer, P.J., and Fitzgerald and Saad, JJ.

SAAD, J.

Defendants appeal by leave granted the September 3, 1997 order
by Wayne County Circuit Judge Pamela Harwood granting
plaintiff’s motion to compel production of patient medical
records and certain of defendant Aronson’s personal records
in a wrongful discharge lawsuit. This Court granted defendants
leave to file this interlocutory appeal. We reverse the order
compelling production of the medical records, but affirm the
order compelling production of Aronson’s personal records.

I. NATURE OF THE CASE

This appeal raises several discovery issues, one of which
involves an issue of first impression in Michigan regarding the
scope of the physician-patient privilege. Plaintiff alleges that
the medical research records of Alzheimer’s patients contain
necessary and material information relating to her wrongful
discharge lawsuit. She contends that these records will bear out
her claim that defendant Dr. Aronson required her to practice
medicine without a license by performing research functions
restricted to physicians. She argues that defendants are not
entitled to assert the physician-patient and
psychotherapist-patient privileges in order to shield relevant
evidence. Defendants argue that the privileges constitute an
absolute bar to disclosure. Without reaching the issue of
privilege, the trial court ordered defendants to produce the
records in redacted form. Defendants took an interlocutory appeal
from that order.

We conclude that under Michigan Supreme Court precedent and
subsequent decisions by this Court, the physician-patient
privilege is an absolute bar which prohibits the unauthorized
disclosure of patient medical records, including when the
patients are not parties to the action. We reverse the trial
court’s order compelling discovery of those records.

II. FACTS AND PROCEEDINGS

This lawsuit arises from an employment dispute between
plaintiff, a registered nurse who worked as a research nurse
coordinator, and defendant Dr. Stephen Dr. Aronson, M.D. Dr.
Aronson conducted a study of Sabeluzole, an experimental drug for
the treatment of Alzheimer’s disease under the sponsorship
of the Janssen Research Foundation (JRF). He began this research
at Wayne State University and the Veterans’ Administration
Hospital, and later brought the study to Oakwood Hospital.
Plaintiff worked with Dr. Aronson at Wayne State and the VA
hospital, and joined him at Oakwood in January, 1996, on a less
than full-time basis.

According to plaintiff, plaintiff’s and Dr.
Aronson’s working relationship quickly deteriorated after
the move to Oakwood. Plaintiff’s part-time status led to a
conflict between her and Dr. Aronson over plaintiff’s hours,
compensation, and benefits package. Plaintiff alleges that Dr.
Aronson gave her false information on these matters before she
made the move. The parties also disagreed over plaintiff’s
responsibilities. Plaintiff has alleged the following version of
events: After moving to Oakwood, Dr. Aronson was permitted to
retain honoraria for lectures and speaking engagements that he
had not been permitted to retain at Wayne State. Induced by this
financial incentive, Dr. Aronson overbooked himself with speaking
engagements that interfered with his participation in the
research. Because he was often out of town, he was not available
to perform patient medical exams and other research-related
duties. Instead, he expected plaintiff to "practice medicine
without a license" by assuming certain duties that FDA
regulations and research protocols restricted to medical doctors.
He also required plaintiff to falsify records to conceal his lack
of involvement. The parties also clashed over a pending
Parke-Davis study of the drug Milanimine. This study never
materialized. Dr. Aronson contests plaintiff’s version of
events, and has denied asking her to do anything improper. Dr.
Aronson avers that plaintiff’s dissatisfaction stems from
defendants’ inability to accede to her demands regarding
wages, benefits, and work schedule.

In June, 1996, plaintiff left Oakwood’s employ. Again,
the parties dispute the circumstances of plaintiff’s
departure. Plaintiff alleges that she confronted Dr. Aronson over
his illegal and unethical conduct, which caused him to become
angry and demand her resignation. When plaintiff refused to sign
a resignation letter, he falsely informed Oakwood administration
that she had resigned. In contrast, defendants contend that
plaintiff voluntarily quit out of dissatisfaction with her
compensation and because Dr. Aronson refused her demand to be
paid a "finder’s fee" for each patient in the
study.

Plaintiff filed this three-count lawsuit against Oakwood and
Dr. Aronson. Plaintiff included counts for "wrongful
discharge" (specifically, a breach of contract claim);
"retaliation in violation of public policy", and
"interference with contractual or advantageous
relations." With respect to the second count, plaintiff
alleged that defendants terminated her in retaliation for her
objections to Dr. Aronson’s illegal and unethical conduct.

Discovery Requests And Objections To
Discovery

In the course of discovery, plaintiff requested defendants to
produce "a copy of the case histories and records of the
patients in Dr. Aronson’s JRF Sabeluzole study."
Although the discovery request asked for patient names to be
replaced by numbers to preserve confidentiality, plaintiff also
requested a key showing the numbers associated with the names.

Plaintiff also requested the following: documents relating to
the JRF Sabeluzole research project and the abortive Parke-Davis
research project on the drug Milanimine; documents relating to
limitations on Dr. Aronson’s retention of lecture honoraria
at both Oakwood and Wayne State; Forms 1099 for the tax years
1994-1996, showing amounts paid for speaking engagements; travel
records for 1994-1996; and Forms 1099 for 1994-1996 showing
amounts JRF paid for the Sabeluzole study.

In their response to this request, defendants objected to the
request for medical records because the information was not
relevant and was not reasonably calculated to lead to the
discovery of admissible evidence. Defendants also averred that
the request was "overly broad and burdensome" because
it involved thousands of pages of documents which filled two file
cabinets. They objected to the requests for Forms 1099, research
documents, honoraria records, and travel records on grounds of
relevance.

Plaintiff filed her motion to compel discovery of these
documents. She argued that the medical records and research
project records were relevant because they would support her
allegation that Dr. Aronson violated FDA research rules and the
research project protocols, and required plaintiff to practice
medicine without a license and commit other improper acts. She
argued that documents pertaining to Dr. Aronson’s travel,
speaking engagements, and honoraria were relevant because they
related to her allegations that Dr. Aronson’s travel took
precedence over his participation in the study, prompting him to
delegate medical responsibilities to plaintiff and falsify
records.

In response, defendants reiterated their objection that the
medical records were not relevant to any issue and were too
burdensome to produce. Additionally, defendants argued at the
motion hearing that the records were privileged, although they
had not raised this matter in their brief.

With respect to the remaining discovery requests, defendants
argued that the research documents were not relevant because
plaintiff was not required to demonstrate that Dr. Aronson
actually committed any violations to prove her retaliatory
discharge claim (which defendants erroneously labeled a
Whistleblowers’ claim[1]).
Similarly, they argued that information on Dr. Aronson’s
travels and speaking engagement was irrelevant because plaintiff
would not be required to prove that Dr. Aronson did, in fact,
neglect his research responsibilities.

The trial judge heard the motion on August 22, 1997 and
concluded that the materials were sufficiently relevant to
plaintiff’s causes of action for purposes of discovery, and
granted the motion to compel. However, the court also issued a
protective order to maintain confidentiality of the records and
to replace patient name’s with initials. We granted
defendants’ application for interlocutory appeal.

III. ANALYSIS

A. The Physician-Patient Privilege and Dr.
Aronson’s Research Records

The applicability of the physician-patient privilege is a
legal question that this Court reviews de novo. Once we determine
whether the privilege is applicable to the facts of this case, we
determine whether the trial court’s order was proper or an abuse
of discretion. See Dorris v Detroit Osteopathic Hospital,
220 Mich App 248, 250; 559 NW2d 76 (1997), aff’d 460 Mich
26; 594 NW2d 455 (1999) see also Reed Dairy Farm v Consumers
Power, 227 Mich App 614, 618; 576 NW2d 709 (1998), standard
for reviewing attorney-client privilege, which we consult for
analogy.

1. The Statutory Privileges

The physician-patient privilege statute provides, in pertinent
part:

Except as otherwise provided by law, a person duly
authorized to practice medicine or surgery shall not discloseany information that the person has acquired in
attending a patient in a professional character, if the
information was necessary to enable the person to prescribe
for the patient as a physician, or to do any act for the
patient as a surgeon. . . . [MCL 600.2157; MSA 27A.2157
(emphasis added.)]

The Mental Health Code, MCL 330.1101 et. seq.; MSA
14.800(1) et. seq. includes additional protection for
communications to a psychiatrist or psychologist. The Mental
Health Code defines "privileged communications" as
"a communication made to a psychiatrist or psychologist in
connection with the examination, diagnosis, or treatment of a
patient, or to another person while the other person is
participating in the examination, diagnosis, or treatment or a
communication made privileged under other applicable state or
federal law." MCL 330.1700(h); MSA 14.800(700)(h). The
Mental Health Code provides that privileged communications
"shall not be disclosed in civil, criminal, legislative, or
administrative cases or proceedings, or in proceedings
preliminary to such cases or proceedings, unless the patient has
waived the privilege" except in six enumerated
circumstances, none applicable here. MCL 330.1750(1-2); MSA
14.800(750)(1-2). The psychiatrist-patient privilege prohibits
disclosure of "the fact that the patient has been examined
or treated or undergone diagnosis" except where that
information is relevant to a health care provider’s or
insurer’s rights or liabilities. MCL 330.1750(3); MSA
14.800(750)(3). The physician privilege bars disclosure of "any
information" acquired in the course of the professional
relationship, whereas the psychiatrist privilege applies only to
the patient’s communications. However, the record in
this case is insufficient for determining if the distinction is
important here. Although defendants suggest that the psychiatric
privilege might preclude discovery even if the physician
privilege does not, we conclude that for purposes of this appeal,
there is no difference in the application of these two privileges
as applied to the facts here.

A threshold issue, which neither party has raised or
addressed, is whether the physician-patient privilege applies in
this case, where Dr. Aronson and the Alzheimer’s patients
were not involved in a traditional doctor-patient relationship.
Plaintiff has not contended that the patient records from the
Sabeluzole study fall outside the scope of privileged matters
under either statute. Hence, we assume for purposes of our
analysis, that the subjects were patients entitled to the
privilege.

"The purpose of the [patient-physician] privilege is to
protect the doctor-patient relationship and ensure that
communications between the two are confidential." Herald
Co v Ann Arbor Public Schools, 224 Mich App 266, 276; 568
NW2d 411 (1997). The privilege did not exist at common law, thus,
"the statute controls the scope of the privilege in
Michigan." Id. "The privilege belongs to the
patient and can be waived only by the patient." Plaintiff
also has not contended that any of the patients expressly or
impliedly waived their privilege, or that any of the six
enumerated exceptions in MCL 330.1750(2); MSA 14.800(750)(2) is
applicable.

2. Defendants’ Arguments for
Application of Privilege

There is ample Michigan authority to support defendants’
argument that the physician-patient privilege is an absolute bar
which protects the medical information of non-party patients,
although no case is on all fours. Defendants rely on Schechet
v Kesten, 372 Mich 346; 126 NW2d 718 (1964). In Schechet,
the plaintiff, a physician, sued the defendant, a hospital
administrator, for defamation, alleging that the defendant
attacked his professional competence. Id., 349. The
plaintiff served interrogatories on the defendant which requested
the defendant to identify the "cases" (presumably the
names of patients and information about their treatments) which
induced the defendant to make the censorious statements. Id.,
350. The Michigan Supreme Court held that the physician-patient
privilege barred disclosure:

The statute imposes an absolute bar. It protects,
"within the veil of privilege," whatever in order
to enable the physician to prescribe, "was disclosed to
any of his senses, and which in any way was brought to his
knowledge for that purpose." (Briggs v Briggs, 20
Mich 34, 41 [1870.]) Such veil of privilege is the
patient’s right. It prohibits the physician from
disclosing, in the course of any action wherein his patient
or patients are not involved and do not consent, even the
names of such noninvolved patients.

Relying on Schechet, this Court has held that the
physician-patient privilege barred disclosure of medical
information for patients who were not parties to the action. In Dorris
v Detroit Osteopathic Hospital, 460 Mich 26; 594 NW2d 455
(1999), the plaintiff in a medical malpractice action sought the
name of the patient who shared her hospital room because she
believed this person would corroborate plaintiff’s
allegation that plaintiff refused a certain medication. 220 Mich
App 249-250. This Court held that Schechet was binding
precedent which barred disclosure of a patient’s name. Id.,
251-252. Our Supreme Court agreed, and affirmed this Court’s
decision:

The language of § 2157 is clear in its prohibition of
disclosure of privileged information. In accordance with
prior rulings of this Court, particularly Schechet,
that the purpose of the privilege is to encourage
patients’ complete disclosure of all symptoms and
conditions by protecting the confidential relationship
between physician and patient, we find requiring the
defendant hospitals to disclose the identify of unknown
patients would be in direct contradiction of the language and
established purpose of the statute. [Id., 37.]

Similarly, in Popp v Crittenton Hospital, 181 Mich App
662; 449 NW2d 678 (1989), a medical malpractice patient alleged
that the defendants, a hospital and a physician, were negligent
in failing to promptly conduct a CAT scan when plaintiff came to
the emergency room. The physician testified that another patient
was under the CAT scan when plaintiff arrived. Plaintiff sought
discovery of the other patient’s medical records to
determine which patient deserved priority. The trial court denied
the request. Id., 665. Citing Schechet, this Court
upheld the trial court because the physician-patient privilege is
an "absolute bar prohibiting the disclosure of even the
names of patients who are not involved in the litigation." Id.
This Court stated that "the information sought was protected
by a physician-patient privilege held by someone not a party to
the lawsuit who did not waive his privilege." Id.

In Dierickx v Cottage Hospital Corporation, 152 Mich
App 162; 393 NW2d 564 (1986), the plaintiffs claimed in a medical
malpractice action that their first-born daughter suffered
central nervous system damage as a result of defendants’
negligence during childbirth. Id., 164-165. The defendants
sought discovery of the medical records of the plaintiffs’
two younger children because the youngest suffered from the same
developmental problems as the eldest child. The defendants
intended to show that the first-born daughter’s problems
were caused by a genetic disorder rather than negligence. Id.,
165. The trial court denied this discovery on the basis of the
physician-patient privilege. Id., 166. This Court
affirmed, rejecting the defendants’ argument that the
plaintiffs waived the privilege by placing the younger
girls’ physical condition at issue:

The right to assert the physician-patient privilege is
personal to the patient. . . . Although Katie and Kimberly
are related to plaintiffs, they are not parties to this
action. The existence of a genetic defect may be an issue in
this litigation, but Katie and Kimberly (or their
representatives) have not placed the health of Katie and
Kimberly in controversy. Thus, they have not waived the
privilege. [Id., 167.]

The Court rejected the defendants argument that the privilege
was "not absolute where it is asserted solely to gain
strategic advantage and to conceal evidence likely to establish
the truth." Id., 168.

3. Plaintiff’s Arguments Against
Application of Privilege

a

Plaintiff contends on appeal that she seeks only
non-privileged information from the records, and that she will
agree to an in-camera review to redact privileged information.
However, this is not what plaintiff requested in discovery, and
it is not what the trial court ordered. Plaintiff requested
"a copy of the case histories and records of the
patients in Dr. Aronson’s JRF Sabeluzole Study" with
names redacted, but with a key showing the relationship between
names and numbers. The trial court ordered the production of
"the documents identified in Plaintiff’s Motion",
with the qualification that "patient names only may
be redacted at Defendants’ option, and replaced with
initials of the patients." Neither plaintiff’s proposed
"confidentiality order" nor the trial court’s
order would serve to protect privileged materials in the records.
Also, plaintiff has never specified, either in lower court
filings or on appeal, precisely what non-privileged information
she needs from the records that can be isolated from privileged
materials, consistent with the broad scope of the
physician-patient privilege. It is therefore not possible, on
this record, to fashion an order for in-camera review and
redaction, notwithstanding the question of whether such an order
is legally permissible.

Plaintiff relies upon Porter v Michigan Osteopathic
Hospital Association, Inc, 170 Mich App 619; 428 NW2d 719
(1988). In Porter, the plaintiff claimed that her ward, a
psychiatric patient in the defendant hospital, was raped by two
other patients. In her lawsuit against the hospital, the
plaintiff sought information on the suspected assailants,
including nurses’ notes, records of prior history of
assaultive behavior, and records of the suspects’ criminal
conduct. Id., 622. The trial court ordered an in-camera
inspection of these materials to determine whether a privilege
applied. Id., 623. On appeal, this Court noted that the
materials the plaintiff requested might or might not contain
privileged matters. Id., 623-624 This Court approved of
the trial court’s utilization of in-camera review to make
the necessary distinction:

As the order stands, since it excepts privileged
information from disclosure and since it provides for an in
camera hearing over contested information regarding whether
or not it is privileged, we find that the order of the trial
court sufficiently protects privileged information from
disclosure while at the same time ensuring plaintiff liberal
discovery. . . . We don’t know where the disclosure will
lead, perhaps nowhere, but the trial judge can amply
protected privileged information in the in camera proceeding.
[Id., 624-625.]

In dissent, Judge MacKenzie argued that the majority’s
opinion took an unjustifiably narrow reading of the
psychiatrist-patient privilege and ran contrary to Schechet,
supra. Id., 626-627. Porter no longer has any
force of law. In Dorris, supra, the Supreme Court
overruled Porter and held that Judge MacKenzie’s
dissent was the correct statement of law. Id., 36-37. [2]

Plaintiff has thus failed to cite valid authority for her
argument that the physician-patient privilege is not violated
where patient names have been redacted from the records. The
statute does not make an exception for redacted medical records.
On the contrary, the statute broadly and clearly forbids
physicians from disclosing "any information" acquired
under the requisite circumstances. When statutory language is
clear and unambiguous, we must honor the legislative intent as
clearly indicated in that language. Western Michigan
University Board of Control v State, 455 Mich 531, 538; 565
NW2d 828 (1997). No further construction is required or
permitted. Id. Read literally, the privilege statute does
not allow for an exception when the information is disclosed
without the patient’s name attached. We therefore conclude
that the privilege applies even where the patient names are not
disclosed.

b

Plaintiff also argues that the Michigan Supreme Court cases Domako
v Rowe, 438 Mich 347; 475 NW2d 30 (1991) and Howe v
Detroit Free Press, 440 Mich 203; 487 NW2d 374 (1992),
militate against a party invoking a privilege "for an
ulterior purpose of shielding the party from production of
evidence which would be damaging or unfavorable to that
party." However, neither case supports plaintiff’s
position.

In Howe, supra, the defendant newspaper published an
article which portrayed plaintiff as a severely dysfunctional
alcoholic. Id., 206-207. In the ensuing defamation action,
defendants sought discovery of a probation report prepared in
connection with the plaintiff’s drunk driving conviction. Id.,
207. The plaintiff asserted a privilege for probation records
under MCL 791.229; MSA 28.2299. Id. The Court rejected the
defendant’s "automatic waiver" argument, and held
that the plaintiffs were "entitled to stand by their claim
of statutory privilege and have their interests carefully weighed
against those of the defendants without the threat of automatic
waiver or sanctions." Id., 224. After balancing these
interests, the Court concluded that the "benefit gained by
waiving the privilege", (i.e., the defendants’ access
to information that could support their truth defense) "is
far greater than the injury that will inure to the probation
officer-probationer relationship." Id., 227.

In Domako, supra, the defense counsel in a medical
malpractice issue conducted an ex- parte interview with the
plaintiff’s treating physician, who had repaired the damage
defendant allegedly caused in a prior surgery. The treating
physician told the defense counsel that he did not believe
defendant had been negligent. Id., 350-351.
Plaintiff’s counsel accused the treating physician of
violating the physician-patient privilege and refused to allow
defense counsel to depose him. Id., 351. Eventually, the
Michigan Supreme Court granted leave to appeal on the limited
issue of whether the ex-parte interview violated the
physician-patient privilege. Id., 352. The Court concluded
that there was no violation, because the plaintiff had already
waived her privilege. Id., 356-357. The Court held that
the plaintiff could therefore not assert the privilege for the
limited purpose of preventing the ex-parte interview:

An attempt to use the privilege to control the timing of
the release of information exceeds the purpose of the
privilege and begins to erode the purpose of waiver by
repressing evidence. Both consequences are anathema to the
open discovery policy of our state. The statute and the court
rule both allow waiver, thus striking an appropriate balance
between encouraging confident disclosure to one’s
physician and providing full access to relevant evidence
should a charge of malpractice follow treatment. [Id.,
355.]

The Court then concluded that the ex-parte interview was
permissible informal discovery. Id., 357-361.

Neither of these cases supports plaintiff’s position that
defendants may not assert the privilege because they are using
the privilege "offensively" to withhold relevant
materials from plaintiff. In Domako, supra and Howe,
supra, the plaintiffs were asserting their own
privileges to prevent the defendants’ access to information
on issues that the plaintiffs’ own lawsuits had put into
issue. In Howe, the privilege was deemed waived by the
nature of the plaintiff’s defamation lawsuit; whereas in Domako,
the plaintiff was selectively asserting a privilege already
waived to control the manner in which the defendant investigated
the lawsuit. Neither of these scenarios is relevant here, where
the patients have not waived their privilege and where defendants
have not put any privileged matters in issue. We therefore
conclude that defendants’ alleged motive in asserting the
privilege is inconsequential.

In sum, the plain language of the physician-patient privilege
statute and the relevant case law bars release of the medical
records of subjects in the Sabeluzole study. We therefore vacate
the trial court’s order compelling discovery.

Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved
in the pending action, whether it relates to the claim or
defense of the party seeking discovery or to the claim or
defense of another party, including the existence,
description, nature, custody, condition, and location of
books, documents, or other tangible things and the identity
and location of persons having knowledge of a discoverable
matter. It is not ground for objection that the information
sought will be inadmissible at trial if the information
sought appears reasonably calculated to lead to the discovery
of admissible evidence.

Defendants argue that the following items, which the trial
court ordered them to produce, are not relevant within the
meaning of this court rule.

Materials on JRF Research Project

Plaintiff avers that the JRF study documents may contain
information relating to her allegation that Dr. Aronson violated
FDA requirements and research protocols. This is relevant to her
claim that she was terminated in violation of public policy when
she protested these practices. [3]
Accordingly, the trial court did not abuse its discretion when it
ordered these documents produced.

Defendants argue that items relating to the public policy
claim are not relevant, because plaintiff was a just-cause
employee and therefore not allowed to bring a public policy
claim. Defendants’ argument can be summarized as follows:
Michigan recognizes an implied cause of action for wrongful
termination when the plaintiff is discharged for refusing to
violate a law as an exception to the rule that employees
may be terminated at will. Because the public policy cause of
action is an exception to at-will employment, it is not
available to just-cause employees. Defendant did not raise this
argument in the trial court, so we need not review it here. Garavaglia,
supra n 1.

Defendants further argue that if plaintiff were to reformulate
her public policy claim into a WPA claim, this information would
still be irrelevant because WPA plaintiffs need not prove that
the employer actually violated any law, regulation or rule.
Plaintiff has not, however, evinced any intent to raise a WPA
claim, so we need not consider whether the documents would be
relevant in this scenario.

Materials on Parke-Davis Research Project

The Parke-Davis documents relate to an abortive research
project that neither plaintiff nor Dr. Aronson ever actually
worked on. Plaintiff has not explained how these records could be
relevant to her allegations that Dr. Aronson terminated her
because she protested his mishandling of the JRF study.
Accordingly, they are not relevant and should not have been
ordered produced.

Records Relating to Dr. Aronson’s Travels and Lecture
Engagements

Defendants also object to plaintiff’s discovery of the
following items of information, all of which purportedly relate
to her allegation that Dr. Aronson’s travels and speaking
engagements prevented him from properly conducting the Sabeluzole
study: Wayne State’s and Oakwood’s policy on honoraria;
tax forms 1099 showing income earned from speaking engagements
and from the Sabeluzole experiment; and date books and calendars.

Plaintiff argues that this information is relevant to support
her claim that Dr. Aronson’s lecturing took precedence over
his research, and to rebut his deposition testimony that his
lecturing was neither time-consuming nor lucrative. She maintains
that these records will reveal that he was lecturing on dates of
patient exams and office visits, and that the honoraria from
these lectures was the financial incentive for him to neglect his
research responsibilities. Under these circumstances, these
materials are at least marginally relevant to plaintiff’s
claim. We therefore conclude that the trial court did not abuse
its discretion in granting plaintiff’s motion to compel.

We reverse the trial court’s order to the extent it
orders defendants to produce patient medical records and the
Parke-Davis record. We affirm the part of the order addressing
the remaining discovery issues.

/s/ Henry William Saad

/s/ David H. Sawyer

/s/ E. Thomas Fitzgerald

FOOTNOTES:

[1]The Whistleblowers’ Protection Act, MCL
15.361 et seq; MSA 17.428(1) et seq., protects from
retaliation employees who reported or were about to report their
employers’ illegal conduct to a government agency. Plaintiff
has never alleged that she was prepared to report Aronson’s
conduct to the FDA or any other government agency, and has never
sought relief under the Whistleblowers’ statute.

[2]In any event, Porter is inapplicable here
because there has been no in-camera review to redact privileged
materials. Here, plaintiff has broadly requested entire records
and case histories, without offering a basis for selecting only
specific, non-privileged information. Consequently, this Court
would be unable to order the type of in camera inspection used inPorter that would serve plaintiff’s needs to the
extent permitted by the privilege. Also, because it was decided
before November 1, 1990, Porter is not binding precedent
on this Court. MCR 7.215(H)(1).

[3]Michigan courts have recognized a cause of
action for discharge in violation of public policy where an
employee was dismissed for the failure or refusal to violate a
law in the course of employment. Edelberg v Leco Corp, 236
Mich App 177, 180; 599 NW2d 785 (1999); Garavaglia v Centra,
Inc, 211 Mich App 625, 630; 536 NW2d 805 (1995). A public
policy claim is sustainable only where there is not an applicable
statutory prohibition against discharge in retaliation for the
conduct at issue. Driver v Hanley (Aft Rem), 226 Mich App
558, 566; 575 NW2d 31 (1997); Dudewicz v Norris Schmid, Inc,
443 Mich 68, 78; 503 NW2d 645 (1993). Defendant has not argued
that there is any applicable statutory prohibition that precludes
plaintiff’s public policy claim.